While a Louisiana state representative in 1997, Tony Perkins, currently head of the Family Research Council, championed enactment of the nation’s first covenant marriage license law. Now, three states have pending legislation on the subject: Missouri, Oklahoma, and Tennessee. Though well-intentioned, these laws affirm the United States Supreme Court’s fundamentally flawed understanding of the marital relationship. If enacted, they will add to those that have already ushered in homosexual covenant marriages.
As brothers in Christ, I do not question Perkins’ belief that the marital relationship between a man and woman is a covenantal one. I do not question his or anyone else’s belief that no-fault divorce laws have destroyed this fundamental conception of marriage. I also believe civil law should conform to a covenantal understanding of the marital relationship and no-fault divorce laws don’t.
Yet, in 1998, as a Tennessee state Senator, I refused to sponsor covenant marriage license legislation. Why was I opposed to it then, and why am I still opposed?
By 1998, the homosexual conception of the marital relationship was coming onto the scene in law. My fundamental objection was the covenant marriage proposal seemed to affirm the fundamental precept upon which a homosexual marriage license were then resting, namely, that a lawful marital relationship is created in ex nihilo fashion by civil law, meaning, by enacting a statute.
I reasoned that if Tennessee could statutorily create two kinds of marital relationships—no fault and covenantal— it could create one for two people of the same sex. I was concerned that not doing so would result in the U.S. Supreme Court saying homosexuals were being denied the equal protection of the law under the Fourteenth Amendment.
When I refused to carry the legislation, no other Senator would. In 2015, in Obergefell v. Hodges, five justices on the United States Supreme Court proved me right.
They wrote the following about the marital relationship, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” So, far, so good.
But the next sentence is the key to understanding why these covenant marriage laws will become a problem:
But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. (emphasis supplied)
In other words, there is no transcendent meaning to a marital relationship; it’s strictly personal. Thus, “enacted law” creates a form of marital relationship for everyone. But, those laws exclude homosexual couples from something the law provides for everyone else.
Finally, the ultimate result (holding):
[T]he State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. (emphasis supplied)
It should be apparent that the proposed covenant marriage legislation would constitute “enacted law and policy.” It would be another form of “civil marriage.”
This is my question now: Will the principle in Obergefell be extended to require homosexual covenant marriages? If so, is that really what Christians want?
It would be foolish to think the three liberal justices would not extend the fundamental precept of Obergefell—that marital relationships are created ex nihilo from enacted law and policy (civil law)—to the covenant marriage licensing statutes.
So, unless two of the following three U.S. Supreme Court Justices—John Roberts, Brett Kavanaugh, and Amy Coney Barrett—are willing to reverse Obergefell, the civil covenant marriage license created by enacted law and policy will have to be extended to homosexual couples.
I personally think two of them, Roberts and Kavanaugh, if not all three, would extend Obergefell. That would result in homosexual covenant marriages.
Some believe Louisiana, along with Arizona and Arkansas, has already created homosexual covenant marriages. These proposed laws would add to them.
The way to directly challenge Obergefell is to enact legislation that would allow a man and woman who have already entered into a marital relationship by their vows and without any intervention by the state to file a record with an appropriate government office to give notice to the public of their already-existing marital relationship.
As a law professor friend has written, it is like filling a deed to prove consummation of a real estate purchase agreement. The deed is notice of what has already happened.
This legislation was filed in Tennessee, but twice rejected by Republican Governor Lee and the Republican leadership in the House and Senate.
A legal who advocate for Obergefell and the homosexual conception of the marital relationship certainly understood what the notice law meant. She said:
"Specifically defining marriage between one man and one woman as something that the government then has an obligation to recognize as a valid union sets up the stage for Obergefell being rendered meaningless.” (Emphasis supplied)
Right on! The notice law effectively says the marital relationship between a man and woman comes from their vows, not the state and not any license! That law would recognize the marital relationship of man and woman as a creational law civil government must bow to.
Mr. Perkins knows this model legislation is available. The supporting webpage, www.godgivenmarriage.com is there to help him and all those who want to see civil government again acknowledge what God says a marital relationship is.
Therefore, I pray he and ministers in Missouri, Oklahoma, and Tennessee will encourage their legislators to understand what the legal advocate for homosexual marriage understood: notice legislation is the best way to undermine same-sex marriage.
